Appeal No. EAT/1017/94

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 2 November 1995

	Before

	HIS HONOUR JUDGE J HULL QC

	MISS C HOLROYD

	MRS M T PROSSER

MR R BUTLER	APPELLANT

COTTAGE HOMES	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	MS F DICKIE
Free Representation United
49-51 Bedford Row
London WC1R 4LR

For the Respondents	MR S BROWN
(of Counsel)
Messrs Brown Cooper
7 Southampton Place
London WC1A 2DR

	JUDGE HULL QC:  This is an appeal to us by Mr Raymond Butler.  He was employed by Cottage Homes (their full name is the Linen and Woollen Drapers' Cottage Homes) at Mill Hill.  This is a substantial charity.  They provide something like 170 residences there and also a residential home;  all sheltered accommodation for the aged and infirm.  They have other premises in Scotland and the West Country.  They have at least three sets of premises.  There are something like 70 staff and, of course, a large number of residents and inmates of the home.

	The main characters in the story are Mrs Ruth Lesirge, who was the chief executive of the entire charity;  she was stationed at Mill Hill;  Mr Patrick Burns, a financial secretary, who was also stationed there;  and Mr Richard Heywood, an appeals manager.

	Mr Butler was the estate superintendent.  He joined the charity in December 1986 as a handyman and clearly he is a man of ability.  He rose to the position of assistant and then superintendent.  That was in March 1990.

	Amongst the staff who were responsible to Mr Butler were Mr Kevin Oliver, who was a gardener, and Mr Moony, who comes into the story to some extent, a driver.  We know nothing of the history of the matter before March 1993 apart from certain incidental matters which have been referred to in evidence.

	On the morning of 11 March 1993 Mr Butler had gone to see Mr Oliver, the gardener, with a view to telling him that he must remove some personal belongings of his from a shed.  The reason for this was that the charity wished to alter its arrangements for lawn-mowing and two large lawn mowers were to be put in the shed.  There was, on this occasion, some friction between the men.  It appears that Mr Oliver was offensive to Mr Butler.  It may be that he was greatly put out at being asked to move his personal belongings or something of that sort.  He also talked about drink and accused Mr Butler of drinking excessively.  There was some sort of confrontation.  Each man picked up something which was very capable of being a weapon, a baseball bat was picked up by one of them.  A stick, or a stretcher from a chair, was picked up by the other.  This incident apparently ended when another member of the staff, Mr Heywood, appeared and Mr Oliver ran away.  That was the incident in the morning.

	I am going to refer, of course, to the findings of the Industrial Tribunal in due course.

	There were further untoward events that same day.  Mr Butler's son came onto the site.  He was not employed there but he happened to come and he saw Mr Oliver and Mr Oliver apparently made remarks to him about Mr Butler, senior, drinking.  Those were promptly relayed by the son to Mr Butler.  Mr Butler then went to seek out Mr Oliver and "sort him out".  That is the language used.  Again, there was a confrontation and the result of it was that Mr Oliver finished up with a bruised lip, he alleged he had been punched by Mr Butler.  He required some first aid.  Fortunately, it was not very serious.  Thus, an incident which had, so to speak, been foreshadowed in the morning, became a serious matter because it had been alleged that Mr Butler had, indeed, assaulted Mr Oliver by punching him on the lip.

	The story on the other side, what Mr Butler said apparently - I am cutting right through the evidence to what I hope is the essence of it - was that he tried to restrain Mr Oliver, who was threatening violence.  Mr Oliver had put his hands on Mr Butler's arms and in an endeavour to escape from this grasp, Mr Butler had swung his hands up in trying to free himself and struck Mr Oliver on the lip quite accidentally.  It was put on his behalf that it was in the nature of self-defence.  He was trying to free himself from unwarranted force being used by Mr Oliver.  The Tribunal had to consider all these matters.

	These matters were reported to the chief executive, Mrs Lesirge.  She held an inquiry.  She considered statements made at the time.  She considered what was said to her.  She conducted the inquiry and eventually she came to the conclusion that Mr Butler should be dismissed and it is perfectly true that she said in her letter of dismissal that he had been guilty of misbehaviour in the morning and in the afternoon.  We have been shown for the first time the letter of dismissal, and she said in that letter:

		"As you are aware, the above Hearing, at which you attended, was concerned with two allegations of misconduct on your part:

		i)	the threatening of Mr K Oliver with an implement on 11th March 1993; and

		ii)	in a separate incident, the punching of Mr K Oliver on 11th March 1993.

		I have heard your evidence and have taken into account the case you have made against Mr Oliver.  I have also considered the statements of all the witnesses to the alleged acts of misconduct.  Having given these matters full consideration, I have concluded that both allegations are substantiated."

	She told him of her decision and she said:

		"If you decide to Appeal against this decision, your Appeal will be heard by the Vice Chairman of The Cottage Homes Council."

	In the event, Mr Butler did not appeal.  He says that he was confused by matters.

	What he did do was to complain to the Industrial Tribunal.  He complained that he had been unfairly dismissed.  That was on 5 April 1993 and in the answer on 13 May 1993 the employers said that he had been guilty of gross misconduct.

	The Industrial Tribunal, before whom the complaint came, sat at London (North) under the chairmanship of Mr Rabin on no less than four days, 24 February, 14 and 15 June and 26 July 1994.  As a result of their deliberations, they decided that the application should be dismissed.  

	It is from that decision of the Industrial Tribunal that the appeal comes to us.  The first thing I must do is to refer to the decision of the Industrial Tribunal, so that the appeal can be understood.

	They referred to the length and difficulty of the case and said that they meant to give their reasons in full form straightaway so as to explain their decision.  They referred to the incident of the morning.  They gave Mr Oliver's version of it and they say that Mr Heywood, the appeals manager, came and:

		"spoke to Mr Butler and tried to calm things down and decided that it was a minor altercation which he did not intend to report.

		3.	Later on in the morning Mr Oliver saw Mr Butler's son Robert on the estate.  Robert is not employed ... and does not live with his parents.  He was just passing through and Mr Oliver started talking to him, stating that Mr Butler Senior would be better off if he stopped drinking."

That rather offensive allegation had already been made in the altercation in the morning.

		"Robert then found his father, who was having a sandwich lunch and told him what Mr Oliver had said.  Mr Butler became very annoyed at this and was angry that Mr Oliver should involve his son in work matters which were none of his concern.  Mr Butler's reaction was to say that he would go and see Mr Oliver straight away and that Robert should accompany him so that he could confirm the truth of what had been said.  Mr Butler saw Mr Moony [that was the driver employed and also responsible to Mr Butler] as he was going out and as he jumped into his car he told Mr Moony that he was to see Kevin (Oliver) and `sort him out'.  Robert also went to Mr Oliver's house which is on the estate and both father and son arrived within a few minutes.  They got out of their respective cars and Mr Butler Senior saw Mr Oliver and called him over.  Mr Oliver came over and denied that he had said anything to Robert.  Again at this point the story varies depending upon whose version is believed.  According to Mr Oliver Mr Butler was in a temper, Mr Oliver saw Mr Butler move towards him and put up his hands to protect himself but Mr Butler punched him in the mouth and told him not to leave the estate as he would `get him after 5.30'.  Mr Oliver was bleeding from the blow to his mouth and went into his house to wash his face.  Mr Butler followed Mr Oliver in to say he was sorry and Mr Oliver said that he intended to call the police.  Mr Butler's version of the story, as subsequently told at the disciplinary hearing, was that Mr Oliver approached him and grabbed him with both hands which were placed just below Mr Butler's elbows so that Mr Butler could not move his hands.  In an attempt to break the hold Mr Butler raised both hands simultaneously upwards and outwards, and accidentally hit Mr Oliver in the mouth as he was freeing himself."

	I should say, in looking at the commonsense of this situation, that there are two obvious comments.  One is as the Tribunal noted - notes have been laid before us - at page 43 of our bundle, the Chairman noted:

		"KO [Mr Oliver] is a short grey haired man in his late 50's.  [Mr Butler] is tall and well built, some years younger."

The other obvious comment on this incident is that there had been, on any version, serious insubordination that morning by Mr Oliver to Mr Butler.  There had been an apprehension of violence, to say the least of it.  Mr Butler had not apparently reported that matter to the chief executive, which one would have thought that he might have wished to do.  To go round with a view to "sorting him out" that afternoon, being further angry and upset by what had passed with his son, does seem to be an act of extreme unwisdom.  But there it is.

		"4.	Mr Oliver decided not to call the police but reported the matter to the Respondents.  He went to Bedford House and was seen by the nursing sister who treated the wound, which was described as a minor contusion to the lower lip.  Mrs Lesirge was not on the premises but was notified of the incident by telephone and immediately returned to Bedford House.  She spoke to Mr Butler and Mr Oliver and others concerned and told them that she intended to obtain statements on the following day in order to see what action should be taken.  Mr Butler gave a brief statement to Mrs Lesirge on 12 March.  According to his evidence Mrs Lesirge sat and listened to what he had to say while Mr Burns took some notes.  Mrs Lesirge thought that she had written out a statement as Mr Butler made it.  In any event, a hand written statement was produced which Mr Butler subsequently signed...  Mr Butler maintained (although Mrs Lesirge did not remember this) that she asked him to prepare his own statement and submit that for her consideration.  This Mr Butler did on 12 March and prepared notes which were typed by his daughter and which appear at page 36 of the bundle.  This is a more detailed statement than the one taken by Mrs Lesirge and he delivered it to Mrs Lesirge immediately before the disciplinary hearing which ensued.  Statements were also taken from Mr Moony, Mr Oliver and Mr Heywood...  Having taken all statements Mrs Lesirge concluded that there should be disciplinary hearings for both Mr Butler and Mr Oliver and she wrote letters to each of them, both dated 16 March, notifying them that disciplinary hearings would take place, in the case of Mr Butler on 19 March and in the case of Mr Oliver on 22 March.  The charges against Mr Butler were:-

		(a)	The alleged threatening of Mr K Oliver with an implement on the morning of 11.3.93.

		(b)	The alleged punching of Mr K Oliver on the afternoon of 11.3.93.

		The charges against Mr Oliver were:-

		(a)	The alleged refusal to accept an instruction from your line manager to clear out your own property from a Cottage Homes' shed.

		(b)	Allegedly using foul and abusive language to your line manager, Mr Butler.

		(c)	Allegedly making accusations that Mr Butler drank during working hours.

		5.	Mr Butler's disciplinary hearing took place on the morning of Friday, 19 March.  Mrs Lesirge and Mr Burns were the disciplinary panel and as she had indicated in her letter of 16 March, the hearing was tape recorded.  The Tribunal had the unusual benefit of hearing that tape recording during the course of the Tribunal hearing itself, and thus could judge the tone and atmosphere of the hearing as well as refer to the notes which were made by Mr Burns as to what was actually said.  Mrs Lesirge made it clear in her own evidence that she wanted Mr Butler to have the fullest opportunity to present his arguments in respect of the charges made against him.  Mr Butler responded to that by saying that his main argument was to show that Mr Oliver was a born liar and that his version of the events of 11 March should not be believed.  Mrs Lesirge allowed him to call Mr Oliver as a witness and Mr Butler began cross-examining him as to a number of previous incidents which illustrated Mr Oliver's theft or dishonesty.  Mr Oliver denied many of them, changed his story several times and gave the impression to Mrs Lesirge that he was lying in several instances."

	There are some comments which occur, obviously.  First of all, having prepared apparently quite thoroughly for the hearing, as indeed the Tribunal say later in their decision, Mrs Lesirge seems first of all to have allowed the most extraordinary latitude to Mr Butler.  She allowed him to call Mr Oliver for the specific purpose of discrediting him and Mr Oliver was a man against whom there were charges.  It is an astonishing indulgence to Mr Butler that she allowed that and shows the lengths to which she was prepared to go to hear exactly what Mr Butler's case was.  She was inexperienced in these matters and she was clearly conducting it much more like a trial than would be normal amongst more experienced employers dealing regularly with disciplinary offences.

	The Tribunal continue in paragraph 6:

		"6.	While it is apparent from the tape recording that Mrs Lesirge gave Mr Butler every opportunity to say whatever he wanted to say and to call whichever witnesses he wanted to call, there was little or no discussion of the events of the morning of 11 March and Mrs Lesirge did not test the evidence of Mr Butler against that of Mr Oliver, nor did she suggest that Mr Moony could be called as a witness to resolve the variances between the two versions of the altercation which took place in the shed.  As regards the afternoon incident and the alleged punching, Mr Butler continued to deny that he had intentionally punched Mr Oliver and maintained that he had struck him accidentally while trying to free himself.  Mrs Lesirge suggested that he might have struck Mr Oliver in provocation but Mr Butler denied that.  During the course of the discussion he mentioned the fact that his son had been a witness but he did not believe that he was able to call him because of the close relationship.  Mrs Lesirge said that she would be willing to hear Mr Butler Junior and as he was not available on that day it was arranged that he would come and see Mrs Lesirge on the following Monday, 22 March.  This he did and Mrs Lesirge questioned Robert Butler in the presence of the Applicant and Mr Burns, who again acted as note taker.

		7.	Mrs. Lesirge, who had heard evidence from Mr Butler and Mr Oliver on the 19th March, had spoken to the Respondents' solicitors on that day and after having heard Robert Butler's evidence, came to the conclusion that the charges against Mr Butler Senior were proved.  She drafted a letter ..."

and they referred to the letter and what it said about the appeal procedure.  The appeal was not proceeded with.

		"8.	THE REASON FOR THE DISMISSAL [this is very important]

		We find that the reason why the Respondents dismissed Mr Butler was that Mr Butler had been guilty of violent conduct towards a subordinate, which is a reason related to his conduct within the meaning of Section 57(2)(b) of the Employment Protection (Consolidation) Act 1978.

		9.	THE FAIRNESS OF THE DISMISSAL [this, too, is very important]

		In considering whether the Respondents acted reasonably or unreasonably in all the circumstances in treating Mr Butler's conduct as a sufficient reason for dismissing him within the meaning of Section 57(3) of the Act we have had regard to the following matters:-

		(a)	Superficially Mrs Lesirge followed all necessary procedures to ensure that Mr Butler had a fair hearing.  She went to the trouble of consulting text books on industrial relations procedure, she conferred with solicitors both before and after the hearing and from the tape recording it was apparent that she took her responsibilities seriously and endeavoured to act in an impartial and fair manner.  She had before her two written statements made by Mr Butler, one based on an interview which was held on the morning of 12 March and the other being the typewritten statement which Mr Butler prepared subsequently and handed to Mrs Lesirge at the hearing.  She also had the statements of the other witnesses to the events that day.  Mr Butler's Counsel [Ms Dickie, who has appeared before us today] made much of the fact that little if any enquiry was made by Mrs Lesirge at the hearing itself as to what had happened on the morning of 11 March.  [This is an important matter to Ms Dickie's argument.]  There were clear inconsistencies between the versions of events given by Mr Butler and by Mr Oliver.  Perhaps those inconsistencies could have been resolved if Mr Moony had been called.  Had he wished to do so, Mr Butler could certainly have called Mr Moony or Mrs Lesirge could have called Mr Moony at her own instance.  In evidence Mr Butler was frank enough to admit that he had not called Mr Moony because he was a friend of Mr Oliver and would probably have backed up his story.  It is remarkable that there was little if any discussion of the morning incident and the Tribunal felt that this could have justified the contention put forward by Mr Butler's Counsel that Mrs Lesirge was guilty of inadequate investigation and as such, the hearing was procedurally unfair.  However the incident which took place on the afternoon of 11 March was in itself sufficiently serious to justify dismissal and we find that this was the true reason for the dismissal, notwithstanding that Mrs Lesirge herself concluded that both charges had been proved.  With regard to the afternoon incident, she was confronted with two conflicting stories and chose to believe that of Mr Oliver rather than that of Mr Butler as corroborated by his son.  Having seen all three witnesses in the Tribunal hearing, we conclude that it was not unreasonable for Mrs Lesirge to make that finding."

There they were applying the correct test.  It was not a case of which of the witnesses they believed about the truth of the incident.  It was for Mrs Lesirge to make up her mind about that and the Tribunal had to look to see whether she conducted herself fairly and whether there was proper material on which she could reasonably have reached such a conclusion.  They held that she had.

		"(b)	Having decided that Mr Butler was guilty of having assaulted Mr Oliver on the Respondents' estate, during the working day (albeit in the lunch interval) Mrs Lesirge's decision to dismiss fell well within the range of reasonable responses for an employer to make in those circumstances, having regard to the nature of the employment, the number of employees and the relationship between Mr Butler and the Chief Executive.

		Accordingly, we conclude that the dismissal was fair."

They thought it right to go on and they say this in paragraph 10:

		"The Tribunal were concerned at certain aspects of the Respondents' attitude to Mr Butler;  we have already referred to our reservations as to the adequacy of the investigation which was undertaken into the morning incident.  We were also concerned that the charges framed against Mr Butler and Mr Oliver seemed to pre-judge the outcome, in that Mr Oliver was not accused of having been involved in fighting but Mr Butler was.  It is worth observing that following the disciplinary hearing of Mr Oliver he was found guilty of all charges but was only given a final warning.  Mrs Lesirge justified that on the grounds of the difference in status of the two men and the fact that while she could continue to employ Mr Oliver as a gardener under final warning, it would be impossible for her to continue to employ Mr Butler as a superintendent in the same circumstances.  That too seems a reasonable response for her to have made."

	Then they went on to contribution and said that they would have found Mr Butler 80 percent to blame in any event if they had found any unfairness.  Having regard to what they said about Mrs Lesirge conducting the enquiries scrupulously and having accepted that Mr Butler was the person who was the aggressor, who had punched Mr Oliver, it was perhaps not surprising that no further charges were proffered against Mr Oliver in the circumstances.

	With regard to the inadequacy or potential inadequacy of the enquiry as to the morning incident, they found that it was the afternoon incident that was the true reason for dismissal.  Obviously, there would be two views of Mrs Lesirge's behaviour in concentrating on the afternoon incident and giving little attention to sorting out the rights and wrongs of the morning incident.  One would be that she, as an inexperienced judge, so to speak, had overlooked an important matter.  The other would be that she did not truly consider that an important matter and thought that the actual assault, which had resulted in injury, albeit a minor injury, was the important matter;  and that that was the true reason for the dismissal.  That was what the Tribunal accepted and that is an important part of the appeal to us today.

	Those were their conclusion of fact about that.  There are plenty of indications, as we have seen in the notes of evidence, that that was, indeed, the position - that she was concentrating on the afternoon incident and, therefore, that that was the true cause of the dismissal, as the Tribunal thought that it was.  It was for them to say, as the judges of fact, whether they did take that view of the matter or whether, on the other hand, they thought there were two reasons for this dismissal and one had not been fairly entertained.

	We now look at what is said by Miss Dickie, who, as I say, was the advocate for Mr Butler before the Tribunal.  She makes two grounds of appeal.  She says in her skeleton argument, which puts matters even more clearly than the Notice of Appeal:

		"In finding that the true reason for dismissal was the incident on the afternoon of 11th March, the Industrial Tribunal made a finding which was not supported by the evidence."

It appears to all of us, having considered the matter as carefully as we can and, certainly, having looked at Mrs Lesirge's evidence, that that is far from correct.  It appears to us that there was plenty of evidence that that was, indeed, the true position.  

	I have already commented on the respective seriousness of these two incidents.  One was an unpremeditated incident in which the employee had used bad language and both men were preparing for a fracas and, mercifully, it did not take place.  Then Mr Butler, the superior man, the man who was trusted, would have been expected to take tougher action if he made anything of it, as one would have thought he should have done.  He should have reported the matter and he should have been very discreet and very sensible in any way that he approached Mr Oliver after such an incident until the matter had really and properly been sorted out.  Instead of which, after some further provocation, as he understood it to be, he being told by his son that his drinking had been mentioned again, resolved to "sort him out" as he put it.  He went round with his son, so it was two to one, so to speak, and then there was an incident which resulted in physical injury.  Small wonder if, in fact, Mrs Lesirge concentrated on the latter.  Small wonder if the Tribunal thought that that was the true reason for the dismissal.  It seems to us to be plain as a pikestaff, if one allows a little commonsense into this, that Mr Butler's behaviour on the second occasion, on any view, was much more serious and blameworthy than it was on the first occasion and Mrs Lesirge gave the Tribunal to understand as much.  She was being very fair.  She was inexperienced but she concentrated almost entirely on the second incident and the only rational explanation for that, unless they found that she was neglecting her duties, was that that was the important matter.  

	The other limb of the appeal is this:  the Tribunal ought to have found that the employer had prejudged the facts in question and that the dismissal was, therefore, unfair.  Ms Dickie goes through the evidence.  She sets out a number of matters on which I have already commented.  She says, in particular, and this is an important contention, that Mrs Lesirge had totally failed to understand that the nature of Mr Butler's defence in both cases was self-defence.  

	There are several things to be said about that.  First of all, looking at its from a safe distance, this was an incident which arose when Mr Butler had, on any view, engaged in most unwise behaviour and had gone round, apparently, seeking a confrontation.  "I'll sort him out".  The second is that it is not up to us to make comments of that sort and, certainly, not findings of that sort.  These matters were fairly and squarely before the Industrial Tribunal.  That Mrs Lesirge was prejudiced, that she had prejudged the matter, that she was not acting fairly, that she failed to understand the issues because she had prejudged it - these, as Ms Dickie frankly told us, were matters which she put to the Tribunal.  They were matters for the Tribunal and the Tribunal, had it thought that there was substance in them, would have so found.  They expressed their misgivings.  They are criticised for that.  It is said that having expressed those misgivings about the thoroughness of the enquiry into the morning incident, they should have gone on to make a finding that there was prejudice, there was an inadequate enquiry.  

	It seems to us, on a fair reading of this decision, that that is using the fine toothcomb technique, which has been condemned several times by the Court of Appeal. It appears to us that the Tribunal was doing no more than giving voice to a matter which had concerned them and which they had considered.  If they considered it and then not reached a finding adverse to the employers, that meant that, it seems to us quite plainly on the findings here, they were saying, "Despite that, we do not base any finding against the employers on that because the true reason for the dismissal was what happened in the afternoon".  That, they thought, was fairly and properly enquired into.  They had, after all, gone much, much further than most Tribunals would to enquire into this case.  They were plainly very conscious that Mrs Lesirge was not experienced in these matters and had very conscientiously referred to textbooks, taken advice from solicitors and considered carefully what to do, had re-opened her enquiry and so on.  They were concerned about it and had gone much further than, I think, any Tribunal, in my experience, has gone by listening to the tape recording, so that they not merely had a note of everything that passed at Mrs Lesirge's disciplinary enquiry but they actually heard the enquiry, as if they had been present at the enquiry. 

	We remind ourselves that it is not our task to go through decisions with a fine toothcomb or to find particular words, phrases, or whatever it may be, that could give an adverse impression.  We all think, having looked at this Tribunal's decision, and having read it, each of us, more than once, that it was a just and proper decision by the Industrial Tribunal, that they were entitled to reach the conclusions which they did, both with regard to the cause of the dismissal, the true cause, as they called it, and with regard to the fairness of the behaviour of the employers in treating that as a reason for dismissal.  In those circumstances, in spite of the criticisms which have been very forcefully put to us by Ms Dickie, we say that this appeal has got to be dismissed.  There is no error of law that we can discover in this Tribunal's decision.